Judiciary Takes Up Succession

The House Judiciary Committee laid the groundwork Wednesday for future consideration of changes to presidential succession, as Members heard testimony that the current system is a constitutional disaster waiting to happen.

Although further action is unlikely before the 109th Congress convenes, the subcommittee on the Constitution heard some of the myriad problems associated with the 1947 Presidential Succession Act from a panel of experts, including Rep. Brad Sherman (D-Calif.), on how to remove the ambiguities and legal uncertainties from the current line.

“Suffice it to say here that the 1947 act is almost certainly the most dangerous statute to be found in the United States Code,” Miller Baker, a partner at the law firm McDermott Will & Emery and a former counsel to the Senate Judiciary Committee, told the panel.

His belief that the current succession law “threatens to deprive the United States of clear executive authority at the precise moment” when the need for it would be most urgent was echoed by the other panelists.

Sherman outlined the merits of his proposal, which would move House and Senate leaders to the bottom of the chain. Cabinet secretaries would be after the vice president in order of the creation of their departments (including Homeland Security, which he would add), followed by the ambassadors to the United Nations, United Kingdom, France, Russia and China — the next highest administration officials to reside outside of Washington.

Many constitutional scholars believe having Members in the line of succession is unconstitutional, because the reference in Article II, Section 1 to Congress’ ability to declare by law what “Officer” shall act as president precludes House and Senate leaders because they are not officers, with a capital “O.”

Baker pointed out that for that reason, naming governors to the line — which has been floated because they have executive experience and reside outside D.C. — could be problematic because they are not officers of the United States. (One way around that would be for the president to federalize the National Guard, which the governors head in each state.)

Instead of leaving the Speaker and President Pro Tem in the line regardless of party affiliation, Sherman would have the president-elect transmit to the Clerk of the House and the Secretary of the Senate his or her choice among the Speaker or the House Minority Leader and then the Senate Majority or Minority Leader. Doing so, he argued, could discourage politically motivated violence, as it would reduce the likelihood of a policy shift if succession were to be triggered.

Yale University law professor Akhil Amar said leaving Members in line, albeit at the end, would likely withstand scrutiny because “the Constitution is not a suicide pact.”

The witnesses, upon direct inquiry by subcommittee Chairman Steve Chabot (R-Ohio), said they believed Sherman’s bill to be well-thought-out and a dramatic improvement on the current system. It seemed the Californian’s bill would be the starting point if and when the committee moves on the issue.

“Nothing would throw me more than if members of this panel would join me in introducing this legislation,” Sherman said, which he intends to do in November.